Conformed to Federal Register version SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 230, 242, 249, and 270 [Release Nos. 33-10580; 34-84710; IC-33311; File No. S7-11-18] RIN 3235-AM24 Covered Investment Fund Research Reports AGENCY: Securities and Exchange Commission. ACTION: Final rules and technical amendment. SUMMARY: The Commission is adopting a new rule under the Securities Act of 1933 to establish a safe harbor for an unaffiliated broker or dealer participating in a securities offering of a covered investment fund to publish or distribute a covered investment fund research report. If the conditions in the rule are satisfied, the publication or distribution of a covered investment fund research report would be deemed not to be an offer for sale or offer to sell the covered investment fund’s securities for purposes of sections 2(a)(10) and 5(c) of the Securities Act of 1933. The Commission is also adopting a new rule under the Investment Company Act of 1940 to exclude a covered investment fund research report from the coverage of section 24(b) of the Investment Company Act, except to the extent the research report is otherwise not subject to the content standards in self-regulatory organization rules related to research reports. We are also adopting a conforming amendment to rule 101 of Regulation M, and a technical amendment to Form 12b-25. DATES: This rule is effective January 14, 2019, except that amendatory instruction 4 amending §230.139b(a)(1)(i)(A)(1) is effective May 1, 2020. Comments regarding the collection of information requirements within the meaning of the Paperwork Reduction Act of 1995 should be received on or before February 11, 2019. FOR FURTHER INFORMATION CONTACT: Asaf Barouk, Attorney-Adviser, John Lee, Senior Counsel; Amanda Hollander Wagner, Branch Chief; Thoreau Bartmann, Senior Special Counsel; or Brian McLaughlin Johnson, Assistant Director, at (202) 551-6792, Investment Company Regulation Office, Division of Investment Management; Steven G. Hearne, Senior Special Counsel, at (202) 551-3430, Division of Corporation Finance; Laura Gold or Samuel Litz, Attorney-Advisers; or John Guidroz, Branch Chief, at (202) 551-5777, Office of Trading Practices, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-8549. SUPPLEMENTARY INFORMATION: The Commission is adopting 17 CFR 230.139b (“new rule 139b”) under the Securities Act of 1933 [15 U.S.C. 77a et seq.]; 17 CFR 270.24b-4 (“new rule 24b-4”) under the Investment Company Act of 1940 [15 U.S.C. 80a-1 et seq.]; a conforming amendment to 17 CFR 242.101(a) (rule 101) of Regulation M [17 CFR 242.100– 242.105]; and a technical amendment to Form 12b-25 under the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.]. 2 TABLE OF CONTENTS I. INTRODUCTION II. DISCUSSION A. Scope of Rule 139b 1. Definition of “Covered Investment Fund Research Report” 2. Definition of “Research Report” 3. Definition of “Covered Investment Fund” 4. Non-Exclusivity of Safe Harbor B. Conditions for the Safe Harbor 1. Issuer-Specific Research Reports 2. Industry Research Reports C. Presentation of Performance Information in Research Reports about Registered Investment Companies D. Role of Self-Regulatory Organizations 1. SRO Content Standards and Filing Requirements for Covered Investment Fund Research Reports 2. SRO Limitations E. Conforming and Technical Amendments III. ECONOMIC ANALYSIS A. Introduction B. Baseline 1. Market Structure and Market Participants 2. Regulatory Structure C. Costs and Benefits 1. FAIR Act Statutory Mandate 2. Rule 139b 3. Rule 24b-4 4. Amendments to Rule 101 of Regulation M and Form 12b-25 5. Effects on Efficiency, Competition, and Capital Formation 6. Alternatives Considered IV. PAPERWORK REDUCTION ACT V. FINAL REGULATORY FLEXIBILITY ACT ANALYSIS A. Need for, and Objectives of, the Rules and Rule Amendments B. Significant Issues Raised by Public Comments C. Small Entities Subject to the Rules D. Reporting, Recordkeeping, and Other Compliance Requirements E. Agency Action to Minimize Effect on Small Entities VI. STATUTORY AUTHORITY 3 I. INTRODUCTION As directed by the Fair Access to Investment Research Act of 2017,1 we are adopting new rule 139b2 under the Securities Act of 1933 (the “Securities Act”) to extend the current safe harbor available under rule 139 to a “covered investment fund research report.”3 Rule 139 provides a safe harbor for the publication or distribution of research reports4 concerning one or more issuers by a broker or dealer (a “broker-dealer”) participating in a registered offering of one of the covered issuers’ securities.5 Rule 139’s safe harbor currently is not available for a broker-dealer’s publication or distribution of research reports pertaining to specific registered 1 Fair Access to Investment Research Act of 2017, Pub. L. 115-66, 131 Stat. 1196 (2017) (the “FAIR Act”). 2 See Covered Investment Fund Research Reports, Securities Act Release No. 10498 (May 23, 2018) [83 FR 26788 (June 8, 2018)] (“Proposing Release”). 3 See section 2(a) of the FAIR Act; see also Proposing Release, supra note 2, at section I.B. The FAIR Act also includes an interim effectiveness provision that became effective as of July 3, 2018 and by its terms will terminate upon the adoption of new rule 139b. See section 2(d) of the FAIR Act. 4 See Proposing Release, supra note 2, at 26789 n.11 and accompanying text. See also infra notes 5–6. 5 Specifically, rule 139 provides that a broker-dealer’s publication or distribution of research reports—whether about a particular issuer or multiple issuers, including within the same industry—that satisfy certain conditions under the rule are “deemed for purposes of sections 2(a)(10) and 5(c) of the [Securities] Act not to constitute an offer for sale or offer to sell.” Rule 139(a) under the Securities Act [17 CFR 230.139(a)]. A broker-dealer’s publication or distribution of a research report in reliance on rule 139 would therefore be deemed not to constitute an offer that otherwise could be a non-conforming prospectus in violation of section 5 of the Securities Act. Sections 5(a) and 5(c) of the Securities Act generally prohibit any person (including broker-dealers) from using the mails or interstate commerce as a means to sell or offer to sell, either directly or indirectly, any security unless a registration statement is in effect or has been filed with the Commission as to the offer and sale of such security, or an exemption from the registration provisions applies. See 15 U.S.C. 77e(a) and (c). Section 5(b)(1) of the Securities Act requires that any “prospectus” relating to a security to which a registration statement has been filed must comply with the requirements of section 10 of the Securities Act. See 15 U.S.C. 77e(b)(1). Section 5(b)(2) of the Securities Act requires that any sale of securities (or delivery after sale) must be accompanied or preceded by a prospectus meeting the requirements of section 10(a) of the Securities Act. See 15 U.S.C. 77e(b)(2). 4 investment companies or business development companies (“BDCs”).6 The FAIR Act requires us to revise rule 139 to extend the safe harbor to broker-dealers’ publication or distribution of covered investment funds upon such terms, conditions, or requirements, as we may determine necessary or appropriate in the public interest, for the protection of investors, and for the promotion of capital formation.7 In May of 2018 we proposed new rules and rule amendments designed to meet the requirements of the FAIR Act. We received seven comment letters on the proposal.8 Commenters generally supported our proposed implementation of the FAIR Act. However, most commenters requested that we consider eliminating or modifying certain of the conditions in current rule 139, as applied to covered investment fund research reports (such as the minimum public float requirement and the requirement to publish research reports in the regular course of 6 For example, rule 139 is available for research reports regarding issuers that meet the registrant requirements for securities offerings on Form S-3 or Form F-3. See rule 139(a)(1)(i)(A)(1). In contrast, registered investment companies register their securities offerings on forms such as Forms N-1A, N-2, N-3, N-4, and N-6. To the extent that commodity- or currency-based trusts or funds (as defined in section II.A.3 below) register their securities offering under the Securities Act and meet the eligibility requirements of Forms S-3 or F-3, as well as the other conditions of rule 139, the rule 139 safe harbor is currently available for a broker-dealer’s publication or distribution of research reports pertaining to these issuers. Section 2(a)(3) of the Securities Act provides a safe harbor for broker-dealers with respect to research reports about “emerging growth companies,” as defined in section 2(a)(19) of the Securities Act. Broker-dealers may therefore currently rely on this safe harbor with respect to research reports about BDCs that are emerging growth companies. 7 See section 2(a) of the FAIR Act. 8 Comment Letter of Morningstar, Inc. (July 5, 2018) (“Morningstar Comment Letter”); Comment Letter of BlackRock, Inc. (July 9, 2018) (“BlackRock Comment Letter”); Comment Letter of Eversheds Sutherland (US) LLP (July 9, 2018) (“Sutherland Comment Letter”); Comment Letter of Fidelity Investments (July 9, 2018) (“Fidelity Comment Letter”); Comment Letter of the Investment Company Institute (July 9, 2018) (“ICI Comment Letter”); Comment Letter of the Securities Industry and Financial Markets Association (July 9, 2018) (“SIFMA Comment Letter I”); Comment Letter of the Securities Industry and Financial Markets Association (Sept.